Did Zuma break his oath of office?

When does “No, there is no
reason to pay” become “Of course I owe money, just tell me the amount
and here is the cheque”? The answer: when the Constitutional Court says
so. In the make-believe world of some, however, there was never a negative
answer; it was always a simple question of what lawyers refer to as quantum -
the correct amount of an admitted liability.

That was the basis of President
Jacob Zuma’s explanation to the nation last week as to how he understood the
implications of the Constitutional Court’s judgment in the Nkandla case.
The
problem is that the refusal to pay and the dismissive attitude to the public
protector’s report, which called on Zuma to remedy the situation of personal
benefit enjoyed by way of non-security improvements to his home at Nkandla,
continued from Zuma’s first response to the report until his lead counsel
Jeremy Gauntlett SC conceded that the presidential approach was legally
unjustifiable.

Recall that Zuma wrote to the
public protector in September 2014 stating that although her reports and
recommendations were useful for the development of democracy they did not have
to be followed unless affirmed by a court on review. He then informed her that
he had handed the matter over to Minister of Police Nathi Nhleko for advice on
whether he was liable for any of the Nkandla costs.

When he spoke to the nation last
week, Zuma said that the advice he received was now shown to be wrong, but at
the time was based upon the approach to the public protector’s powers as
adopted by Judge Aston Schippers in his judgment in the case of the DA vs SABC
in the Western Cape High Court in April 2015.

The president had presumably
latched on to a line in the judgment by Chief Justice Mogoeng Mogoeng (leading
a full bench of the court) to the effect that no finding of bad faith could be
made by the court against Zuma, in that the high court had adopted a similar
legal approach.

Given the timing of the September
2014 letter and the Schippers judgment, the former could not possibly have been
based on the latter. It is possible that Zuma’s legal advisers had come to a
legal conclusion similar to that of Schippers’s on the legal status of the
public protector’s report - even though Schippers delivered his judgment in the
SABC case about six weeks after Zuma’s letter.

In addition, Schippers held that
the SABC could only ignore the report and the recommendations of the public
protector if it had a cogent reason. Not only was the SABC required to provide
a clear, rational basis for rejecting the report, but the judge also held that
the SABC, as the effected party, had to engage with the public protector during
this process. The inspanning of Nhleko to assist with the Nkandla matter, and
his subsequent report, hardly amounted to the kind of safeguards that Schippers
had laid out.

Simply put, it is doubtful whether
the attempt to rely on this judgment passes any kind of plausible justification
for the two-year battle fought by Zuma against the public protector.

In any event, by last year the DA
vs SABC case had gone to the Supreme Court of Appeal, which held that
Schippers’s approach to the powers of the public protector was fatally wrong,
and that only a review by a court could justify the rejection of such a report.
It was presumably the cogency of that judgment that persuaded Gauntlett, Zuma’s
advocate in the matter, to raise the legal white flag.

It is arguably less the inevitable
outcome confirmed by the Constitutional Court and more the lengthy, cavalier
approach by the government from 2012 to 2014 to a key constitutional
institution that is the major reason for the significant public disquiet.

That the outcome of the EFF
application was inevitable after the Gauntlett concession to a large extent
means that the Constitutional Court was hardly confronted with a difficult
case, as some breathless commentators have suggested.

It is, rather, in the words chosen
by the chief justice that the core importance of the judgment is to be found.
Take the opening sentence: “One of the crucial elements of our
constitutional vision is to make a decisive break from the unchecked abuse of
state power and resources that was virtually institutionalised during the
apartheid era. To achieve this goal, we adopted accountability, the rule of law
and the supremacy of the Constitution as values of our constitutional
democracy.”

This is a powerful statement, a
riposte to those who refuse to see the importance of the Constitution as a
basis for the nation’s journey to a substantive democracy.

In similar fashion, the chief
justice asserts the vital role the president must play in the vindication of
this constitutional vision, and then concludes with a summary of how abysmally
short Zuma has fallen:

“[T]he President thus failed
to uphold, defend and respect the Constitution as the supreme law of the land.
This failure is manifest from the substantial disregard for the remedial action
taken against him by the public protector in terms of her constitutional
powers. The second respect in which he failed relates to his shared section
181(3) obligations. He was duty-bound to, but did not, assist and protect the
public protector so as to ensure her independence, impartiality, dignity and
effectiveness by complying with her remedial action. He might have been
following wrong legal advice and therefore acting in good faith. But that does
not detract from the illegality of his conduct, regard being had to its
inconsistency with his constitutional obligations.”

Here lies the real importance of
the judgment: not that it is legally ground-breaking, but that it is a muscular
assertion that all rule in this country is subject to the Constitution.